DUI confusion

New ruling in NJ benefits drivers who fluently speak another language. Drivers stopped for DUI in New Jersey have the right to refuse to give a breath sample. Although refusal comes with automatic penalties, the penalties may be less severe than the DUI charge depending upon the circumstances.
The police officer is required to provide notice of the consequences of breath-test (Alcotest) refusal. Recently, a refusal conviction against a motorist in NJ was reversed due to the fact that the officer did not give notice of consequensce in a language understood by the motorist.
The purpose of notice requirements in statutes and regulations is exactly that- notice to the individual. If the individual being provided notice does not understand the notice provided then the legislative intent is defeated.
Of course this brings about problems for the prosecution in proving DUI matters as, while the specific language spoken by the detainee is ascertained and translators are sought and summoned to the site where the alcotest, or even field sobriety tests which are certain to be the next cases litigated as to the language requirement, the blood alcohol content diminshes at a rapid rate.
The individual claiming not to understand English bears the burden of proof so merely claiming not to understand may result in further legal trouble if a trial occurs and police investigation reveals otherwise. However, in the event of a true failure to understand there is an opportunity for the motorist to prevail.
For more information on DUI or other motor vehicle matters in NJ visit HeatherDarlingLawyer.com.

Prosecutorial discretion

In NJ criminal matters the prosecutor has discretion to proceed as the police have charged, downgrade the charges, or dismiss a matter completely. There are numerous reasons that each may occur but I shall only cover the most common here.
Most often, when a prosecutor moves ahead with the original charges and does not waiver as the matter moves toward trial it means the evidence against the accused is substantial and not easily refutable.
In the opposite situation, reasons a prosecutor may decide to dismiss a case are lack of amount or quality of evidence which offer no real link of the accused to the scene of the crime. There may be only one witness who is less than reputable. The attorney for the accused may succeed with a motion to suppress evidence or the prosecutor himself may find the police violated the accused's rights and obtained evidence illegally. There may be a determination that the interests of justice will not be served by prosecution as is often the case when the accused has an addiction and is instead directed to treatment. Finally, the accused may be standing trial in multiple jurisdictions for the same series of events and the prosecutor finds the overlap unnecessary.
In between the aforementioned situations is the situation where the prosecutor reduces the original charges. This may be based on lack of evidence, the fact that the matter was a first offense, contribution of a victim to the escalation of a situation or other fact specific reasons.
Clearly, the accused and his or her counsel may obtain indicia of the strength or weakness of the case against the accused from the prosecutor's treatment of the matter throughout the plea bargaining process.
For more information on criminal matters in NJ visit HeatherDarlingLawyer.com.
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Out of Bounds

Although this Blog is typically dedicated to legal matters, an article recently caught my attention which may bear largely on the global economy and I could not pass up the opportunity to call attention to this experiment.
An experiment in humanity. Knights Apparel company now pays a wage to employees in its Dominican factory which permits them to improve their quality of life in reponse to cries for more humitarian conditions for factory workers in foreign nations. If wearers of the apparel are willing to pay the price it will succeed but at what price to the rest of the world? In the midst of economic crisis, a major oil spill with results yet untold and natural disasters unfolding daily it seems a wonder that something is afoot which has such great possibilities to improve the lives of impoverished workers. It is hard not to wonder why now when thinking of the timing of this experiment. When America has a new class of "poor", the previous "lower middle class" who have lost jobs and are losing homes at previously unseen rates it is difficult to imagine the sustainability of an experiment exporting more American dollars in exchange for labor at higher rates. This monumental experiment will certainly be a true test of the heart of mankind and the choice between self-preservation or the elevation of others to an economic status never before seen in such areas, and eventually perhaps more similar to his or her own.
Not only is it a test of where man's heart is but may be a leading indicator of a new global economic trend which is reaching beyond Japan, China, Mexico and other regular U.S. trading partners who have seen fit to close the gap between the standard of living in the U.S. and their own countries.

Alcotest Under Assault Once Again

In NJ there is a new challenge to the Alcotest awaiting appeal. Evidence shows the Alcotest device, used to determine blood alcohol content for DUI suspects, routinely records breath samples of up to 25 seconds in length being provided yet most people are capable of providing only about a 6-8 second sample. This new information is being used to call into question the reliability of the purportedly self-calibrating machine. In the event the machine is in fact self-calibrating, this faulty sample time calls into question other indicia determined in State v. Chun to be scientifically reliable and therefore admissable as evidence of DUI.
Should the Alcotest be deemed unreliable the multitude of guilty pleas and verdicts for DUI based predominately on the Alcotest results are subject to review.
For more information on DUI or other NJ Municipal Court matters visit HeatherDarlingLawyer.com.

Stop and Frisk. Residents in Brownsville, Brooklyn are routinely subject to a technique used by police known as "stop and frisk" which is permitted for the purpose of deterring crime when police have reason to believe the individuals being stopped and frisked are actively engaged in criminal activity at that moment. In Brownsville residents, who initially welcomed police presence because of a very high rate of serious crime in the area, are being stopped seemingly without reason. People cannot sit on their own front steps, ride bicycles, enter housing projects or other similar routine activities without being stopped, questioned, patted down and having their personal information recorded in a criminal database in spite of the fact that 99% of these people are found to possess no weapons or contraband. Now the very citizens who welcomed police fear them as nearly every resident in Brownsville has been subject to an average of at least 1 police stop per year for the past 4 years.
The question residents and authorities must consider is whether this level of police activity is justified and necessary for the protection of the citizens or whether use of stop and frisk measures has exceeded that required to protect the general public and become violative of the constitutional rights of freedom and privacy of those very citizens it was intended to protect.
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Foreclosure

In the event of foreclosure bankruptcy is an option for a property owner but with the many programs now available rushing to file bankruptcy is not necessarily recommended. Federal legislation now mandates forestalling the foreclosure process in the event the homeowner requests an extension. In addition, banks are not equipped to be property owners or managers, especially of vacant properties which give rise to the likelihood of vandalism and deterioration. In the current market where so many properties, both occupied and unoccupied, remain on the market unsold even at drastically reduced prices lenders are very willing to revise loans so that borrowers, especially homeowners, can retain properties. Of course, there are considerations such as tax implications which may be triggered through processes such as short sales or debt forgiveness by lenders.
In the event of foreclosure there are many options and considerations making it advisable to retain counsel to assist in the resolution of any foreclosure.
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Corporate Principal Liability

There is an incorrect assumption frequently made on the part of corporate principals- that because they are corporate officers acting on behalf of a business they are not subject to liability for the acts of the Corporation. Through the years case law has continued to address what is known as "piercing the corporate veil" in which the actions of the corporate officers and directors may be examined to determine whether they knew or should have known about harmful acts being undertaken by the Corporation. Individuals wishing to protect themselves and their assets from liability for injuries to person or property caused by their businesses are often led to believe that an entity such as a Corporation or Limited Liability Company will fully protect them. It is only later these individuals learn that they were not fully advised. In truth, the more removed the officers and directors of an entity are from the daily corporate operations the more likely it is they will be protected. In a closely held business, such as a single member LLC or family business it is more likely the officers will be imputed with knowledge in the event of a suit for damages against corporate acts.
In the recent New Jersey case of William Allen v. V&A Brothers Inc. a landscaper's work collapsed and the homeowners sought monetary damages, as well as treble damages under the home improvemet regulations. The homeowners were awarded damages against the businesses but the Judge dismissed the case as to the company owners. The homeowners were unable to recover damages from the company due to lack of funds and appealed the dismissal of damages against the company owners. On appeal it was decided that the Consumer Fraud Act did not require the normal piercing of the corporate veil but rather, through the use of the word "person" in N.J.S.A. 56:8 et. seq. the Act itself provided statutory authority to impose penalties directly against the principals of the company.
Corporate entities are under a duty to act fairly and reasonably in undertaking their operations and should they fail to do so the liability may reasonably be placed upon those at the helm of such entities.
For more information on Business Law visit HeatherDarlingLawyer.com or contact Heather J. Darling, Esq.

product liability

Toyota is undergoing yet another recall. Although consumers have a right to safety there is also a need to understand basic automobile functions. When trucks roll over during high speed turns is the consumer under a duty to exercise basic caution and turn at a vehicle appropriate speed? Does basic driver education not teach that when a vehicle is accelerating uncontrolably merely shifting the vehicle to neutral and applying breaks or coasting to a stop will remedy the situation. By failing to exercise due care to protect themselves do consumers have the right to place full onus on the automaker? In todays economy is a company such as Toyota able to withstand recall after recall? It seems that if copanies are to address corporate bonuses then juries should be addressing "consumer bonuses" in the form of rewards for failure to exercise due care.